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HomeMy WebLinkAboutEGD-025-09Clar~~o~ REPORT Leading the Way ENGINEERING SERVICES DEPARTMENT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: July 6, 2009 Resolution #: ~ (~ - ~ 7 3 - O `j Report #: EGD-025-09 File #: By-law #: x..004 - t o7 Subject: MUNICIPAL ACCESS AGREEMENT BETWEEN THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON AND BLINK COMMUNICATIONS INC. Recommendations: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: THAT Report EGD-025-09 be received; 2. THAT the Mayor and Clerk be authorized to execute a Municipal Access Agreement between the Corporation of the Municipality of Clarington and Blink Communications Inc.; and 3. THAT Council approve the by-law attached to Report EGD-025-09. Respectfully by, Submitted by: A.S. Cannella Director of Engineering Services ASC/NAC/dv June 24, 2009 evlewed by: Franklin Wu ~( Chief Administrative Officer CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379 F 905-623-9282 REPORT NO.: EGD-025-09 1.0 BACKGROUND PAGE 2 1.1 Blink Communications is a subsidiary of Oakville )iydro. They deliver cost effective, fibre-based high bandwidth data transport services to the business marketplace. They currently own and operate 13p0 km of routed fibre optic cable in the GTA area. 1.2 Blink Communications is anticipating doing business within the Municipality of Clarington. In that regard, they have requested efitering into a Municipal Access Agreement (MAA) with the municipality. Other telecom companies such as Bell Canada (Bell) and Rogers Communications Inc. (Rogers) have recently entered into MAA's with the Municipality, and they are working well. Blink would be the third telecommunications company to enter into an MAA with us. For consistency amongst telecommunication companies, Blink wa$ forwarded a copy of our standard MAA used with Bell and Rogers. They ave reviewed the MAA and are in favour of executing it, unaltered. (Attachment No~ 1) 1.3 Clarington's standard MAA protects the Municipality's best interests while ensuring excellent customer service for the telecom company's customers. Some highlights: • Clarington retains complete authority over municipal access • Simplified fee structure (annual) • Simplified Road Occupancy Pem~it structure • Three (3) year warranty on workmanship • Pavement degradation fees • As-built documentationAocate service provided by the companies • Improved cost sharing formulas for plant relocation • Accountability from the companies to correctly installAocate plant • Provision for security deposits if deemed necessary by the Director REPORT NO.: EGD-025-09 PAGE 3 1.4 Fees associated with the standard MAA are calculated based on the volume of work anticipated for the upcoming year. Since Blink does not service residential areas at this time (only business class customers), significantly less work is anticipated for the upcoming years. Based on tha information, Staff determined a lump sum fee of $7,500 per year (to be prorated f r 2009). Blink has agreed to this lump sum fee. Should Blink enter into the residential business category, or should their work volume increase significantly, the annual fee would require an associated increase. 1.5 It should be noted that Clarington's standard MAA has been reviewed and endorsed by the Municipality's solicitor, the. Municipality's Treasurer and the Durham Insurance Pool. Attachments: Attachment 1 -Agreement with Blink Attachment 2 -Proposed By-law List of Interested Parties: Blink Communications Inc. ATTACHMENT N€a.: i REPORT NO.: EGD-025-09 MUNICIPAL ACCESS AGREEMENT ACCESS TO MUNICIPAL RIGHTS-OF-W'AY This Agreement made the 13s' day of July, 2009. BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (the "Municipality") -and- BLINK COMMUNICATIONS INC. (the "Company") WHEREAS the Company is a Canadian carrier as defined in Section 2 of the Telecommunications Act, S.C. 1993, c. 38, as amended or is a distribution undertaking as defined in subsection 2(1) of the Broadcasting Act, S.C. 1991, c. 11, as amended (collectively "Canadian carrier") ; AND WHEREAS, in order to operate as a Canadian carrier, the Company is required to perform Work and operate its Plant in, on, over, under, across or along the Municipality's Rights-of--Way; AND WHEREAS, the Company requires the Municipality's consent to perform such Work and operate such Plant, in on, over, under, across or along the Municipality's Rights-of--Way; AND WHEREAS the Municipality is willing to permit the use of its Rights-of--Way where, in its judgement, such use will not interfere with its own service requirements and the public use of the Rights-of--Way including the consideration of functionality, safety and any 3 (g) "Plant" means any of the Company's wires, fibre optic cables, ducts, manholes poles, cables, pipes, conduits, pedestals, antennas, vaults, support structures or other related facilities or structures (but does not include structures such as towers or walk in cabinets) located or planned, as identified on a permit application submitted to the Municipality, to be located in the Right of Way; (h) ``Right-of--Way" or "Rights-of--Way" means any highway, street, road allowance, lane, bridge or viaduct under the jurisdiction of the Municipality; (i) "Road Occupancy Permit" means a permit issued by the road authority of the Municipality for the purpose of authorizing the commencement and undertaking of Work in aRight-of--Way; (j) "Service Drop' means Plant that by its design, capacity and relationship to the overall Plant of the Company, can be reasonably considered to be for the sole purpose of connecting the Plant to not more than a single customer of a single family residence or to a commercial or multiple dwelling building point; (k) `'Subsurface Utility Engineering" means the generic process of locating underground facilities using locating techniques at varying levels of accuracy; (1) "Licensee" means any individual, corporation, partnership, association, joint venture or organization of any kind and the lawful trustee, successor, assignee, transferee or personal representative thereof that attaches their plant to or places their plant in the Company's Plant under an agreement with the Company but does not include direct users of the Company's services; and (m) "Work" means, but is not limited to, activities related to the Company's installation, construction, maintenance, testing, operation, repair, replacement, relocation, removal, adjustment or other alteration of Plant in, on, over, along, under, above or across any Right-of--Way, including the excavation, repair and restoration of the Right-of--Way. 5 notification. Such procedure must be agreed to annually in writing by the Director, and will only be considered where the Company has established a history of excellent communication and service with the Municipality, and adhering to permit conditions. 4.2 The requirements of this section may be waived in the event of an Emergency, provided the Company notifies the Municipality, adheres to all other provisions of this Agreement, and subsequently satisfies the requirements of this section within five (5) business days. 5. The Company acknowledges and agrees that the Municipality may refuse to grant approval with regard to any proposed location for reasons of aesthetics, public health and safety, conflicts with the Municipality's infrastructure, proposed road reconstruction or the proper functioning of public services identified by the Duector. The Municipality may also withhold their approval where the Company has failed to rectify any default under the terms of this Agreement, subject to the Company's rights under the Telecommunications Act. 6. Notwithstanding Section 4, the Company its employees, contractors, representatives or agents may carry out routine maintenance and field testing, without the Municipal Consent of the Municipality but with the applicable Road Occupancy Permit, provided that in no case shall the Company carry out any physical disruption or change to the surface of a Right-of--Way or the use of the Right-of--Way. MANNER OF WORK 7. The Company agrees that its Work shall be subject to the following conditions: (a) All Work, including backfill materials, methods and compaction shall be conducted and completed to appropriate Municipal standards, to the satisfaction of the Director, at the Director's sole discretion, and in accordance with applicable industry standards; (b) The portions of the Plant which cross beneath streets or existing buried utility plant shall be placed in a duct, carrier pipe or be encased in concrete or as otherwise specified by the Director; (c) If the Company breaks or disturbs the surface of aRight-of--Way, it shall repair and restore the surface of the Right-of--Way to substantially the same or better condition it (g) All contractors working for the Company shall have proper identification visible on site displaying the name of the Company they are working for. THE COMPANY'S WARRANTIES 8. The Company represents and warrants to and covenants and agrees with the Municipality that: (a) After completion of its Work, the Company shall leave the Right-of--Way in a sanitary, neat, clean, and safe condition and free from nuisance, all to the satisfaction of the Director; (b) The Company warranties its restoration Work of the Right-of--Way to the satisfaction of the Municipality, for a period of three (3) years from the date of completion; (c) If, as pemutted by this Agreement, the Agreement is terminated by the Municipality, all the unfulfilled covenants, indemnities and obligations of the Company herein shall survive such termination. (d) Where the Municipality requests additional capacity in order to minimize future disruption to the Right-of--Way and provided such does not unduly delay the Company's project, the Company agrees to install up to two (2) additional ducts not exceeding thirty (30) meters in length per location. Such requests shall be made by the Municipality in writing at the time of Municipal Consent. The Municipality shall pay only for the incremental costs of supplying and placing such additional ducts, which shall thereafrer be owned by the Municipality. -Where the Municipality requires additional capacity to resolve existing constraints, to specifically benefit an imminent project or to satisfy a request they have received from a third party, then the Company and the Municipality agree to share costs proportionally, including engineering and design costs. The Municipality shall be solely responsible to recover its costs from any third parties making such a request to them. 9 Company as to the location of the existing Plant, the Company shall undertake a field investigation to verify the accurate location of the Plant at no cost to the Municipality or its consultants. If, for design purposes, the level of accuracy of such locating methods is deemed insufficient by the Municipality, the Municipality may request the Company pursue alternate methods which may include daylighting or other subsurface utility engineering methods. Since the Company will be responsible for damages due to incorrect or insufficient locates as detailed in Section 13, the Company shall determine the extent and degree of locating that shall be completed. Where such increased levels of locating methods are employed by the Company, they will be provided by the Company at no cost to the Municipality or their consultants. Due to the costs involved, both parties agree to limit daylighting requests to areas of potential conflict and to work together cooperatively to avoid unnecessary costs. 12. Ih cases of Emergency, the Company shall, at no cost to the Municipality, provide locates of its Plant within two (2) hours of receiving a request, using reasonable best efforts. In the case of an emergency, the party requesting the locate will either have a representative on site or provide a contact number for a representative, in order to ensure the locates can be completed in the affected area. In all other circumstances the Company will provide Plant locations within a time reasonably agreed upon by the Company and the Municipality. COST RECOVERY DUE TO CONFLICTS WITH PLANT 13. Where the Company's mark-up drawings, locates or actual Plant location aze found to be inconsistent with the approved location, or if the method or level of locating provided by the Company did not accurately locate their Plant, and where the Municipality may incur any direct or induect costs as a result of the actual location of the Company's Plant, the Municipality shall immediately notify the Company. If the Company is unable to rectify the problem in a reasonable time commensurate with the situation, the Company will compensate the Municipality for any reasonable and verifiable additional costs which the Municipality incurs as a direct result of inaccurate or insufficient locates. The Municipality agrees to make every effort in the field to minimize these costs to the Company. I1 20. The responsibility for the costs incurred in relocating the Company's Plant or performing such Work referenced above will, for the purposes of this Agreement, be based upon the following, and shall comprise all directly related relocation costs including labour, labour saving devices and materials in kind. The Company agrees to make every effort to minimize the costs to the Municipality. (a) For relocation costs for Plant installed after the execution of this Agreement, the following sliding scale shall apply: Plant installed subject to Municipal Consent between the Company and the Municipality within four (4) years of the consent approval being granted for the installation of such Plant, the Municipality will be responsible for all reasonable relocation costs. For subsequent years, the Municipality will be responsible for the following percentage of reasonable relocation costs: Yeaz 5 75% Year 6 50% Year 7 25% Yeaz 8 0% For purpose of this section, the date to be used for calculating the relocation costs will be the date of the Municipal Consent. The Municipal Consent date associated. with any Plant installed in or attached to the. Company's support structures shall be the Municipal Consent date for the construction of the Company's support structure(s). (b) For all Plant requiring relocation which has been installed prior to the execution of this Agreement, the cost shall be borne by the Company. Both parties agree to revisit and, if appropriate, renegotiate this clause upon renewal of the Agreement; 13 (f) In the case where the Company's Plant is found to be inconsistenr with the approved location as identified in Section 13, that portion of relocation costs attributable to the Plant in non-compliance with the approved location will be paid by the Company. 21. Both parties agree that special circumstances may arise with respect to specific location approvals whereby it may be appropriate for the parties to mutually agree to waive the above-noted provisions and to negotiate alternative arrangements. These altemative arrangements shall be agreed upon in writing. 22. In no event shall the Company charge the Municipality, nor shall the Municipality be responsible for costs incurred by, or chazged to Licensees to relocate their Plant installed on or in the Company's Plant, unless the Municipality has an agreement with such Licensees for alternate arrangements. 23. The relocation of Plant requested by parties other than the Municipality or those not required for Municipal purposes, shall be at the discretion of the Company acting reasonably and all of the costs of such relocations will be chazged directly to the party requesting such relocation. An agreement in writing by each party to assume responsibility for all such relocation costs shall be required prior to commencing any of the associated relocation Work. All relocations requested under this section, shall be subject to obtaining Municipal Consent and all other applicable permits. 24. If the Company fails to complete the relocation or removal of the Plant in accordance with this Agreement or fails to repair and restore the Rights-of--Way or do anything else required pursuant to this Agreement in a timely and expeditious manner to the satisfaction of the Duector, acting reasonably, the Municipality may, at its option complete such relocation, removal, repair or restoration. The Company shall pay the cost of such relocation, repair, removal, restoration or other Work to the Municipality forthwith plus an overhead equal to fifteen percent (15%) of such cost. In default of payment thereof, the amount of such cost 15 action or other legal proceeding, and shall reimburse the Municipality for any and all reasonable legal expenses on asolicitor-client basis incurred in connection therewith. The Company's obligation to indemnify:, defend and save harmless the Municipality shall survive the termination of this Agreement. (a) If the Municipality becomes aware of any claim to which the Company's indemnity as set out above or elsewhere in this Agreement applies, the Municipality will promptly, once becoming aware of the claim, advise the Company in writing. The Municipality will provide reasonable particulars, to the extent of the Municipality's knowledge, of the factual basis for the claim and the amount of the claim. (b) With respect to any third parry claim, the Company will have the right at its expense, to participate in or assume control of the negotiation, settlement or defence of the claim. (c) If the Company does not assume and continue control of the defence of any third party claim within fifreen (15) business days of the initial written notice of the claim from the Municipality, then the Municipality shall have the exclusive right to contest, settle or pay the amount claimed, and shall have the right to recover all amounts in full from the Company. (d) Where the Company assumes control of any third party claim, the Company has the right to settle the claim on such terms and conditions as are acceptable to the Company and the Municipality, and will provide and execute such releases or such other documentation as maybe necessary to complete the settlement of such claim. 27. Despite anything contained in this Agreement, the Municipality and the Company shall not be liable to each other in any way for special, incidental, indirect or consequential losses, including damages for pure economic loss, howsoever caused or contributed to, in connection with this Agreement or with the Plant or the Right-of--Way, even if advised thereof. 17 LEGISLATIVE CHANGE 32. If at any time subsequent to the entering into of this Agreement the Provincial or Federal government or a regulatory authority, acting within its jurisdiction, enacts or repeals any legislation or regulation, or orders, directs or mandates anything which pertains to the subject matter of this Agreement then either party may notify the other of its intention to require the other party to enter into good faith negotiations to amend this Agreement, or to enter into a new agreement reflecting such legislative or regulatory action or court or tribunal decision, as the case may be, within thirty (30) days after written notice (the "Notice") from the notifying party and any newly mandated terms and conditions, charges or fees pursuant to such new or amended agreement will take effect from the date upon which the Notice expires. If the parties are unable to re-negotiate the terms and conditions of this Agreement then the unresolved matters may, within thirty (30) days prior written notice from the requesting party, be referred by the party to arbitration for resolution, in accordance with the Ontario Arbitration Act, as amended or its successor legislation, or to the CRTC. Subject to the right to request arbitration, if an amendment to this Agreement or a new agreement is not reached within ninety (90) days from the date on which the Notice was received, either party may terminate this Agreement without further notice and both parties shall fulfil their respective obligations thereafrer in accordance with this Agreement. SECURITY 33. The Company agrees to post a "blankeP' irrevocable letter of credit, or other form of security acceptable to the Municipality, at a value and term determined by the Municipality to ensure all restoration costs and obligations are met. (Notwithstanding the above, the Municipality reserves the right to acquire additional securities for significant projects beyond the scope of the original irrevocable letter of credit). Should the Municipality draw on this "blanket" security, the Compahy shall immediately reinstate the security to the original value in effect at the time of drawing. If the Company does not agree with the value of said "blanket" security, it may alternatively post an individual irrevocable letter of credit 19 (c) the Company ceases to operate as a Canadian carrier within the meaning of the Telecommunications Act or to be licensed as a distribution undertaking within the meaning of the Broadcasting Act, pursuant to the Telecommunications Act or the Broadcasting Act as amended from time to time, or any successor legislation; or (d) The Company violates any law or by-law in connection with the use of a Right-of- Way and fails to remedy the violation to the satisfaction of the Director, acting reasonably, in an expedient manner. ASSIGNMENT 37. This Agreement maybe sublicensed, granted, transferred or assigned: (a) By the Municipality or the Company in its entirety, to a single sublicensee, grantee, transferee or assignee with the other's prior consent in writing, which consent shall not be unreasonably withheld; or (b) By the Company during the term of this Agreement without the Municipality's prior consent in writing; i. Upon having first given notice to the Municipality of the sublicense, grant, transfer or assignment; and ii. Provided the sublicensee, grantee, transferee or assignee is an affiliate of the Company within the meaning of the Canada Corporations Act as amended from time to time; and (c) Despite the sublicense, grant, transfer or assignment of this Agreement by the Company, the Company will remain fully responsible to the Municipality for fulfillment of the obligations and liabilities of the Company described in this Agreement regazdless of whether the obligations or liabilities arise out of any acts or omissions by the sublicensee, grantee, transferee or assignee, but only until such time as the sublicense,, grantee, transferee or assignee enters into a separate agreement with the Municipality. 21 (b) The Company shall .complete any insurance certificate forms as required by the Municipality; (c) All policies shall provide that they are primary insurance which wIll not call into contribution any other insurance available to the Municipality, and shall provide a waiver of subrogation and for severability of interest. Such insurance shall not be cancelled or materially changed to the detriment of the Municipality, acting reasonably, without at least thirty (30) business days notice to the Municipality by registered mail; (d) The insurance. coverage required under this Agreement shall not be construed to, and shall in no manner, limit or restrict the Company's liability or obligations under this Agreement; and (e) Forthwith upon the execution of this Agreement, the Company shall provide the Municipality with certificates of insurance evidencing the insurance coverage required by this Agreement and thereafter provide renewals of such insurance coverage as required. NOTICES 40. Any notice required or permitted to be given hereunder or any tender or delivery of documents may be sufficiently given by personal delivery or, if other than the delivery of an original document, by facsimile transmission to the Municipality at the following address: Municipality of Clarington 40 Temperance St. Bowmanville, Ontario L1C 3A6 Attention: A.S. Cannella, Director of Engineering Tel: 905-623-3379 Fax: 905-623-9282 23 44. This Agreement creates contractual rights only between the Municipality and the Company and not an interest in the Rights-of--Way and the Company covenants and agrees with the Municipality that the Company shall cease and desist from any registration of this Agreement or of any right howsoever arising under it. 45. No amendments or waiver of any provision of this Agreement shall be binding on either party unless consented to in writing by such party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, nor shall any waiver constitute a continuing waiver unless expressly provided. 46. In this Agreement, unless the context otherwise requires, the singular includes the plural and the masculine includes the feminine gender and a corporation. 47. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Province of Ontario and the laws of Canada which may be applicable to a party in the Province of Ontario and both parties irrevocably attorn to the jurisdiction of the Courts of the Province of Ontario. TIME OF ESSENCE 48. Each party agrees that it shall at all times act reasonably in the performance of its obligations and the exercise of its rights under this Agreement. Furthermore, time shall be of the essence in this Agreement. TREES 49. The Company is responsible for the costs of any remedial work required to rehabilitate any trees damaged in the performance of its Work permitted by this Agreement or, in the event any trees suffer irreparable damage, the Company shall compensate the Municipality for the reasonable value of the trees as determined by the Municipality. REMOVAL OF GRAFFITI 50. The Company shall take all reasonable measures, to the satisfaction of the Municipality, to clean, remove or conceal graffiti or other unauthorized markings in a timely manner from its 25 receiving notification of abandonment when directed in writing by the Municipality, the Company shall remove said Plant and restore the area to substantially the same condition at the Company's sole expense and within a time frame agreed to by the parties. Where the Municipality prefers to assume ownership of abandoned Plant rather than require its removal, the Company agrees to sell such Plant, or any portion of it to the Municipality for a nominal fee of two dollars ($2). The Director may also request that the Company confirm the use, or potential use of any Plant that appears abandoned. Where this cannot be reasonably demonstrated, the Municipality may, after providing written notice thereof and confirming such Plant is inactive and has been inactive for at least ninety (90) days, have such Plant removed at the expense of the Company. LICENSEE ACKNOWLEDGEMENT 53. The Company agrees that it shall provide in its agreements with Licensees utilizing any portion of the Plant, an acknowledgement and agreement by those Licensees that the use of the Plant is subject to the terms of this Agreement, which may be renewed or terminated, and that they shall comply, at their sole expense, with all applicable laws, statues, by-laws, codes, ordinances, rules, orders and regulations of all governmental authorities, and that the Licensee shall obtain and maintain any and all permits, licenses; official inspections or any other approvals and consents necessary or required for the placement or operation of the Licensee's equipment. WORKERS' SAFETY AND INSURANCE BOARD COVERAGE 54. The Company shall pay to the appropriate provincial Workers Safety and/or Insurance Boazd/Commission all assessments and levies owing to the Boazd/Commission by the Company, its employees and others engaged in providing services under this Agreement and any unpaid assessment or levy shall be the sole responsibility of the Company. 27 subcontractors. Failure to provide satisfactory evidence in respect of workers' compensation insurance may result in current permits being suspended and/or future permits being denied by the Municipality until satisfactory evidence of compliance has been received by the Director. IN WITNESS WHEREOF the parties hereto have executed this Agreement by their duly authorized representatives. THE (MUNICIPALITY) Per: Per: THE Per: Per: Troy Hare, P. Eng. President & COO Slink Communications Inc. Schedule B Pavement Degradation Compensation The following pavement degradation compensation shall be payable by the Company #o the Municipality where the Company disrupts the Municipality's pavement. The Company agrees to pay such fees in accordance with the estimated age of the pavement, as determined at the sole discretion of the Director. Pavement aged 15 years or less: $24/sq. metre Pavement aged 16 years or more: $12/sq. metre THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 2009- XX Being a By-law to authorize a Municipal Access Agreement between the Corporation of the Municipality of Clarington and Blink Communications Inc. WHEREAS Council adopted the recommendations contained in Report EGD-025-09 authorizing the execution of a Municipal Access Agreement between the Municipality of Clarington and Blink Communications Inc. NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1. THAT the Mayor and Municipal Clerk be authorized to execute a Municipal Access Agreement between the Corporation of the Municipality of Clarington and Blink Communications Inc.; 2. THAT the agreement attached hereto as Schedule "A" form part of the By-law. BY-LAW read a f rst and second time this xx"' day of xxxxx 2009. BY-LAW read a third time and finally passed this xx~' day of xxxxx 2009. Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk